Recently, the Supreme Court of India asked the state governments to furnish records of the pending cases. This is a follow up action of the top-most court of the country after the President of India, Droupadi Murmu severely criticised the functioning of the courts in India. She mentioned how large numbers of poor and hapless prisoners are languishing in jail as the justice delivery system is dilatory, cumbersome, and costly, which has abridged the timely justice. The President, while departing from the written speech, reprimanded the Chief Justice and judges by saying, “jo baat nahi boli us baat ko samjhiye. (Understand what is not being said)”
Pendency in courts, and a torpid and apathetic justice dispensation is under scrutiny again. Over 48 million cases are pending in India’s courts with more than 72 thousand cases pending in the Supreme Court alone. Many lawyers are handling pending cases, which were filed even they were born.
Careful inquiry and examination of the workings of Judiciary and Parliament shows that the system has not been put to any use. It is either not functioning as it was intended to by the Constitution’s framers or it has been kept deliberately inactive and dormant.
There is an urgent need to activate the system and develop an integrated justice delivery mechanism involving all stakeholders as well.
Also read: CJI announces launch of ‘Supreme Court Mobile App 2.0’, says it enables law officers, govt dept to track cases
Here are 20 steps that can be prescribed for ending the pendency in the court. It will boost the image of judiciary as an apt and timely system of justice.
- The Supreme Court and High Courts are required to identify the matters pending before it wherein the question and law involved is same or substantially the same. The matters having the same question or law should be grouped and tagged together and heard by the same Court. This practice should be followed for subsequent cases. Lawyers may be brought under obligation to mention all sections and laws the case involves on the top of the brief itself.
- High Courts shall identify the matters pending before them wherein the substantial questions of law as to interpretation of constitution or general importance is involved and the similar or substantially the similar matters are also pending before the Supreme Court, the High Court shall dispose them of with a certificate for appeal to Supreme Court under Article 134A of the Constitution. High Courts are not exercising their jurisdiction under Article 134A of the Constitution. Article 134A is almost dormant.
- The Supreme Court should develop a kind of arrangement, possibly a software, in association with High Courts to keep track of pending cases pertaining to the same or substantially the same question of law or general importance or interpretation of the Constitution. On knowledge of pendency of such cases in various High Courts, the Supreme Court can exercise the jurisdiction under Article 139A to take them up. The Supreme Court shall decide the question of law or interpret the Constitution and either dispose them of altogether or remit them back to the respective High Courts to dispose them of at once on a specific date in view of the law.
- The Supreme Court may develop an open software other than the case finder where the Supreme Court and High Court judges should be able to quickly know the status of cases pending or disposed of on a particular section, law, or question with details of courts and their stages. Judges should be persuaded to use that software while hearing cases in Courts. It may be made compulsory upon them so that they can take quick and objective decision.
5 Article 145(3) of the Constitution should be strictly followed and stages of such cases should be eliminated.
- The Supreme Court and High Courts shall act in tandem in the matter of Article 32 and 226 to avoid the multiplicity of litigation on the same or substantially the same subject matter.
- The Supreme Court and High Courts should not write facts of the case and propositions advanced by the counsels in judgments. That responsibility should be entrusted upon the counsels appearing for parties instead. All counsels shall sit together and finalise the memorandum of facts involved and propositions advanced in the matter by all the parties. That memorandum shall become a part of the judgment. This is how the courts’ time can be saved. Registry may also be involved in this process. Courts’ rules and Advocates Act may suitably be amended for this.
- While hearing Special Leave Petitionsin Supreme Court and appeals in High Courts and subordinate courts, courts shall always frame questions of law along with the sections and the laws involved in the matter. The entries of such cases shall always be made immediately in the software. Issuing notice without framing a question of law or fact must be held a misconduct by judges amenable to removal proceedings in Parliament under Article 124 (4) and 217 (1) (b) of the Constitution.
- In every matter, the courts shall assign final hearing date to the matter on notice before admission itself as a norm. Dates for filling requisite counter and rejoinder or proceedings shall be mentioned on the notice itself with a stipulation that dates will not change except for exigencies.
- Stipulation of time provided in procedural law and delay in filing proceedings must be scrupulously adhered to. Parliament should bring suitable amendment in section 5 of the Limitation Act to provide for specific grounds of condonation of delay and how much delay can be condoned. Supreme Court and High Courts shall also be brought under procedural laws.
- Frequent transfers of subordinate courts’ judges and staff require reconsideration. It should be accepted as a norm that if a judge accepts a particular case, he or she shall finally dispose it of before transfer or at least complete a stage.
- In criminal cases, police personnel should be held accountable for delay in filing charge sheets and other formalities.
- No accused shall be detained by police or under judicial custody after case investigation is over. Default bail should be made easy. Moreover, there is need for a comprehensive mechanism for protection of witness. Person behind bars cannot defend her/ himself and all responsibility falls upon the family members who at times are at odds with the accused and therefore, the proceeding delays.
- It is a time to enable Magistrates to exercise jurisdiction effectively, meaningfully, and bravely under Article 20 of the Constitution to protect people from wrongful arrest and for granting of custody and bail. Casual exercise of Article 22 is resulting in grave injustice to people and their fundamental rights are being violated, nay, they are endangered.
- Parliament shall amend the Judges Inquiry Act to bring down the requirement of 100 MPs in Lok Sabha and 50 MPs in Rajya Sabha to initiate judges impeachment proceedings to 20 MPs and 10 MPs respectively, and repeal of power of Chairman or Speaker to reject the motion.
- Parliament should set up a bipartisan committee on to monitor judges’ misbehaviour and incapacity as provided under Article 124 and 217 of the Constitution. The committee should be responsible to initiate removal motion against judges of Supreme Court and High Courts. Half of the judges of this country are not performing, why should they not be removed?
Also read: Under Bobde, pending cases rose in Supreme Court. Now they lie at the next CJI’s door
- United Nations Bangalore Principles of Judicial Conduct (BPJC), 2002 should be immediately enforced through law. Bangalore Principles provide for competence and diligence as a core value of judicial conduct apart from other five principles, viz. independence, impartiality, integrity, propriety, and equality —that means, judicial duties take precedence over all other activities of a judge.
- Chief Justice’s power of administration of courts and judges’ roster should be regulated by Parliament’s law.
- The President may personally administer oaths to the Chief Justice of India and all the judges of the Supreme Court to prevent the feeling of subordination among judges to the Chief Justice. Governors should follow the same in states for High Courts.
- Judges should be encouraged to write dissenting and more quality judgments to strengthen the independence of judiciary and boost public confidence in it. Presently, such judgments from across the country can be counted on fingertips since they are so few in number. This is shaking the confidence of people in judiciary.
Nitin Meshram practices law in the Supreme Court and various High Courts. He tweets at @meshramnitin_.
(Edited by Ratan Priya)